Summary
In Pelletreau v. Brennan (113 App. Div. 806) the contract was in fact signed by the vendors and the sole question was whether it was sufficiently definite to constitute an enforcible obligation and to comply with the requirements of the Statute of Frauds. Isolated expressions in Ford Motor Co. v. Hotel Woodward Co. (271 Fed. 625) and Roskam-Scott Co. v. Thomas (175 App. Div. 84) also fall far short of a holding that the statute is not to be literally interpreted.
Summary of this case from 300 West End Avenue Corporation v. WarnerOpinion
June 15, 1906.
Edward J. McCrossin, for the appellant.
Hugo Hirsh, for the respondents.
The judgment has to be reversed. The findings of fact and conclusions of law are that the contract expresses no consideration, and is so vague and indefinite that a judgment of specific performance cannot be given upon it. The contract contains every essential, i.e., it gives the names of the seller and the buyer, expresses the consideration and describes the land to be conveyed by the defendants. The description, "Clinton and Joralemon street," suffices, for it enables the land to be identified and fully described by evidence dehors ( Waring v. Ayres, 40 N.Y. 357; Miller v. Tuck, 95 App. Div. 134; Levin v. Dietz, 106 id. 208); and such evidence was given. As the parties were dealing in the city of New York, the legal inference is that the contract refers to land there. That the land to be conveyed by the plaintiff as part consideration is not identified by the contract does not matter; it is only the seller who can raise the question of no written contract ( Torres v. Thompson, 29 Misc. Rep. 526); and the plaintiff tendered performance. That the contract provides for the execution of a more formal contract does not detract from it; it is enforcible ( Pratt v. Hudson River R.R. Co., 21 N.Y. 305; Sanders v. Pottlitzer Bros. Fruit Co., 144 id. 209). The writing not being sealed, the action can be maintained by and against the principals for whom their agents signed, although the latter signed by their own names only ( Briggs v. Partridge, 64 N.Y. 357).
The judgment should be reversed.
JENKS and HOOKER, JJ., concurred; RICH and MILLER, JJ., dissented.
Judgment reversed and new trial granted, costs to abide the event.